ICC Forum

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Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

What are the Consequences of Withdrawing from the International Criminal Court?

In the past decade millions of African lives have been lost; this is due to a series of gross genocidal campaigns and humanitarian crimes that have swiftly taken place across the nation. The integral role of the International Criminal Court (ICC) is to administer justice, punish perpetrators of crimes and deter future atrocities from taking place. That being said a number of critics have voiced serious concerns about the courts potent focus on African states and the perils it may face need this practice continue.1 It is therefore not surprising that the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC within the recent weeks. This paper will examine the consequences of withdrawal as well the strides that can be made in order to deter other signatory states from exiting the court.

Provisions in Article 127 of the Rome Statue2 allow for member states to withdraw from the ICC upon notification to the UN Secretary General.3 The three African countries previously mentioned have all finalized the formalities in doing so, and if followed through, their withdrawal from the court will be concluded in October 2017. There are a multitude of possible outcomes both regionally and internationally, that need to be considered in the wake of such decisions. In September 2013 in an unprecedented and contentious turn of events the Kenyan Parliament passed a motion to exit the court, although they still remain a member of the tribunal, their attempt created a domino effect within the African Union. For this reason Burundi’s withdrawal, although not surprising, was one of the first official attempts at a successful exit plan, encouraging other African nations and leaders to follow suit. South Africa’s subsequent withdrawal from the court is a clear example of this effect in practice. Known for its progressive judiciary and liberal stance, South Africa’s departure came as a shock to the international community and many proponents of the court. This decision will have significant implications for the legal landscape in South Africa4 and undoubtedly affect the courts reputation in the eyes of other African nations.

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Academics have argued that this will perhaps lead to the “fundamental weakening”5 of the court, particularly because of the country’s powerful stance in the region. The President of the Assembly of State Parties (ASP) to the Rome Statute, Mr. Sidiki Kaba described South Africa’s withdrawal as a “disturbing signal” and voiced serious concerns on the matter. He stated that “[withdrawal] would open the way to other African States withdrawing from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity, namely genocide, war crimes, crimes against humanity and crimes of aggression.”6 This interpretation is certainly plausible, particularly when looking at the larger context of other AU states having threatened to leave over the past years.

In light of these events the ICC now has the unique opportunity to reconcile ties with the African Union and perhaps urge South Africa (SA) to reconsider its position before their official withdrawal in 2017. Although SA’s reason for withdrawal has yet to be released publicly, a statement from the Minister of Justice7 articulated that the government would rather “give effect to the rule of customary international law, which recognizes the diplomatic immunity of heads of state”—Arguably referring to Sudan’s President Omar al-Bashir. Dapo Akande argues that had SA acted in accordance with the Rome Statute, and turned over al-Bashir, they would not have been in violation of their customary law obligations.8

In other words, this situation could altogether have been avoided. If correct negotiations take place in the upcoming ASP in November, SA’s withdrawal may be altered, however this again is unlikely, given the AU’s reluctance to accept al-Bashir’s guilt. However SA’s withdrawal from the Rome Statute is perhaps a retrogressive step with dire consequences, both for their own criminal justice system, and as champion of human rights within the AU.9 If South Africa does follow through with its withdrawal only time will show the setbacks it is likely to face, if bad, this alone can be a strong determinant for other states not following suit.

The court can perhaps dissuade other member states from withdrawing by focusing its efforts in places such as Afghanistan, Columbia and Syria, although all efforts in the past have been merely observatory and unsuccessful. In recent weeks several initiatives have been taken to encourage states to cooperate with the ICC, for instance the African Union has urged states to ‘help’ the court10 as well as the foreign minister of Botswana urging states to work towards reforming the court, as opposed to leaving it.11 In sustenance to this, the Advocacy Director for Amnesty International in Africa urged other African states to follow the lead of Botswana “rather than joining the drastic march away from justice.”12 Similarly, Human Rights Watch urged other African members to distance themselves from Burundi’s withdrawal and affirm their support for the victims, with African director stating that the country “has sunk to a new low by attempting to deny victims justice before the ICC.”13 This goes to show that the court is still looked upon as a great administer of justice within some nations and withdrawing from it is a loss for the court, the wider international community, and the victims of grave and inhumane crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Laura Barnett, The International Criminal Court: History And Role, Lib. of Parliament (Nov. 4, 2008), available online. ↩

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩

  3. 3.

    Id. at Art. 27(1). ↩

  4. 4.

    Hannah Woolaver, International and Domestic Implications of South Africa’s Withdrawal from the ICC, EJIL Talk (Oct. 24, 2016), available online. ↩

  5. 5.

    Id. ↩

  6. 6.

    Press Release, International Criminal Court, President of the Assembly regrets withdrawal of any State Party from the Rome Statute and reaffirms the Court’s fight against impunity (Oct. 22, 2016), available online. ↩

  7. 7.

    SA formally withdrawing from ICC, SA News, Oct 21, 2016, available online. ↩

  8. 8.

    Dapo Akande, South African Withdrawal from the International Criminal Court—Does the ICC Statute Lead to Violations of Other International Obligations?, EJIL Talk (Oct. 22, 2016), available online. ↩

  9. 9.

    Coalition for the International Criminal Court, Mandela legacy on the line as South Africa moves to leave ICC (Oct. 21, 2016), available online. ↩

  10. 10.

    E. Van Trigt, Africa and Withdrawal from the ICC, Peace Palace Lib. (Oct. 28, 2016), available online. ↩

  11. 11.

    Id. ↩

  12. 12.

    Amnesty International, Gambia: Withdrawal from ICC a drastic blow to countless victims globally (Oct. 26, 2016), available online. ↩

  13. 13.

    Human Rights Watch, Burundi: ICC Withdrawal Major Loss to Victims (Oct. 27, 2016), available online. ↩

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